Countermajoritarian, No! Democracy forcing, Si!

A pretty good take on the Supremes' decision on Hamdan from Balkinization.

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way. It is possible, of course, that with a Congress controlled by the Republicans, the President might get everything he wants. However this might be quite unpopular given the negative publicity currently swirling around our detention facilities at Guantanamo Bay. By forcing the President to ask for authorization, the Court does two things. First, it insists that both branches be on board with what the President wants to do. Second, it requires the President to ask for authority when passions have cooled somewhat, as opposed to right after 9/11, when Congress would likely have given him almost anything (except authorization for his NSA surveillance program, but let's not go there!). Third, by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion.

I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching. Given this Administration's history, that's not necessarily a bad thing.

This whole deal isn't really about the rights accorded to detainees or even the detention itself. It's about our own ideals and whether we live up to the things we profess to believe in, you know, little things like democracy and rule of law, or just pay them lip service. So far, it's just Bush's lips flappin'.

We need to rein Bush et al in (tossin' them out on their ass would be better) and SCOTUS' ruling has at least started a discussion. Boy, has it ever!

Much, much more lawyer-speak on this and other subjects of national importance here.